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II. Introduction

A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.--James Madison \9\

The Freedom of Information Act [FOIA] establishes a presumption that records in the possession of agencies and departments of the executive branch of the U.S. Government are accessible to the people. This was not always the approach to Federal information disclosure policy. Before enactment of the FOIA in 1966, the burden was on the individual to establish a right to examine these government records. There were no statutory guidelines or procedures to help a person seeking information. There were no judicial remedies for those denied access.

With the passage of the FOIA, the burden of proof shifted from the individual to the government. Those seeking information are no longer required to show a need for information. Instead, the ``need to know'' standard has been replaced by a ``right to know'' doctrine. The government now has to justify the need for secrecy.

The FOIA sets standards for determining which records must be disclosed and which records may be withheld. The law also provides administrative and judicial remedies for those denied access to records. Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public.

The Privacy Act of 1974 is a companion to the FOIA. The Privacy Act regulates Federal Government agency recordkeeping and disclosure practices. The act allows most individuals to seek access to Federal agency records about themselves. The act requires that personal information in agency files be accurate, complete, relevant, and timely. The subject of a record may challenge the accuracy of information. The act requires that agencies obtain information directly from the subject of the record and that information gathered for one purpose not be used for another purpose. As with the FOIA, the Privacy Act provides civil remedies for individuals whose rights may have been violated.

Another important feature of the Privacy Act is the requirement that each Federal agency publish a description of each system of records maintained by the agency that contains personal information. This prevents agencies from keeping secret records.

The Privacy Act also restricts the disclosure of personally identifiable information by Federal agencies. Together with the FOIA, the Privacy Act permits disclosure of most personal files to the individual who is the subject of the files. The two laws restrict disclosure of personal information to others when disclosure would violate privacy interests.

While both the FOIA and the Privacy Act support the disclosure of agency records, both laws also recognize the legitimate need to restrict disclosure of some information. For example, agencies may withhold information properly classified in the interest of national defense or foreign policy and criminal investigatory files. Other specifically defined categories of information may also be withheld.

The essential feature of both laws is that they make Federal agencies accountable for information disclosure policies and practices. While neither law grants an absolute right to examine government documents, both laws establish the right to request records and to receive a response to the request. If a record cannot be released, the requester is entitled to be told the reason for the denial. The requester also has a right to appeal the denial and, if necessary, to challenge it in court.

These procedural rights granted by the FOIA and the Privacy Act make the laws valuable and workable. As a result, the disclosure of Federal Government information cannot be controlled by arbitrary or unreviewable actions.


\9\ Letter to W.T. Barry, Aug. 4, 1822, in G.P. Hunt, ed., IX The Writings of James Madison 103 (1910).